AH – 73
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
TRANSPORTATION COMMUNICATION DIVISION – B.R.A.C.
GRIEVANCE RE J. J. DESMEULES
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
W. S. Hodges
And on behalf of the Union:
F. E. Soucy
A hearing in this matter was held at Montreal on September 14, 1972.
In this grievance, the grievor, a spare operator in the employ of the Company and whose headquarters is Desbiens, Quebec, seeks payment of one day’s pay in respect of August 23, 1971.
As a spare operator, the grievor has no regular assignment but performs relief work when required. During the summer of 1971, the grievor, after concluding his vacation on July 24, was assigned to relief work at Chapais, from Sunday, July 25 until Sunday, August 1, inclusive. The rest days for that assignment were Sunday and Monday. On Monday, August 2, the grievor began his next assignment at Jonquiere, which lasted until August 22. The rest days of that assignment were Thursday and Friday. On Tuesday, August 24, the grievor began a new assignment at Chambord where he worked until September 18. The rest days for that assignment were Sunday and Monday.
The grievor’s assignment at Jonquiere ended on August 22. His assignment at Chambord began on August 24. He was not assigned to work and, in the Company’s view, was not entitled to payment on August 23. In this grievance the Union makes two alternative claims. First, that the grievor was entitled to displace the junior employee so as to have work on August 23 and second, that the grievor was entitled to payment for that day as a day of travel pursuant to article 20.10 of the collective agreement.
As to the first claim, it is true that under article 6.1 of the collective agreement, the temporary position for temporary vacancies of less than sixty days is to be filled without bulletins and “where practicable” by the senior qualified operator on the spare list who is not working at the time. This provision, however, deals with the filling of positions and would not appear to give a senior qualified operator who happened not to be working on any particular day the right to displace a junior operator filling some temporary position. Further, by article 7.11, an employee filling a temporary position for a temporary vacancy will not be subject to displacement in the application of seniority rules unless he is the junior employee on the chief dispatcher’s territory. Thus, even if the grievor were entitled to exercise seniority so as to displace a junior employee on this free day, there is only one employee whom he would be entitled to displace in the exercise of any general right under article 6.1 and in the circumstances of the instant case, it does not appear that it would have been “practicable” for this to have been done.
Article 7.5 of the collective agreement sets out the options which must be followed in the exercise of seniority by a permanently located operator who is displaced or whose position is abolished. The collective agreement does not set out any such provision with respect to a spare operator and it would seem natural, having regard to the nature of their employment, that spare operators not have the same privileges as permanently located operators in this respect. It is my conclusion from an examination of the provisions of the collective agreement that the grievor was not entitled to displace another employee in order to work on August 23, 1971.
In claiming compensation for travel time for the grievor on August 23, the Union relies on article 20.10 of the collective agreement which is as follows:
20.10 A Spare Operator performing a continuous series of reliefs without loss of time, except that necessitated in travelling from one point to another, will be paid not less than a day’s pay for each calendar day from commencement of work on the first relief until completion of work on the last relief, except on the regularly assigned rest days of the employee being relieved. The rate of pay of the position to which he is travelling will apply on a day on which he performs no service other than travelling. Compensation will not be allowed for time occupied in travelling from headquarters to first relief or from last relief to headquarters. (Article 8.5 applies to a Spare Operator transferring from one Chief Dispatcher’s Territory to another on the same Promotion District.)
The Union also referred to article 8.5 which provides protection against loss of wages while in transit for employees transferred in certain cases. In my view, the giving of a relief assignment to a spare operator is not the same thing as a “transfer” as that term is viewed in article 8 of the collective agreement. In any event, it is clear from the last sentence of article 20.10 that article 8.5 applies only in certain specific circumstances. Here, the grievor remained throughout on one chief dispatcher’s territory and it is clear that the provisions of article 8.5 do not apply in his case.
There remains the question of whether, in the circumstances, the grievor performed “a continuous series of reliefs without loss of time except that necessitated in travelling from one point to another” and whether, if so, he was entitled to a day’s pay in respect of August 23. Clearly, at the conclusion of his assignment at Jonquiere on August 22, the grievor was free to return to his headquarters at Desbiens, a distance of some forty miles away. He travelled by car and would appear to have been entitled to a payment of travel allowance pursuant to article 20.10. He commenced work at Chambord at 4:00 p.m. on August 24 and could certainly have driven there from his headquarters in Desbiens on that day. The distance from Desbiens to Chambord is some ten miles. In the circumstances, it was clearly not necessary for the grievor to devote August 23 to travel from Jonquiere to Chambord. Thus, between the conclusion of his assignment on August 22 and the commencement of his assignment on August 24, there was a loss of time and that loss of time was not one “necessitated in travelling from one point to another.” In the circumstances, therefore, the grievor did not perform “a continuous series of reliefs without loss of time”. The provisions of the collective agreement are explicit that compensation is not allowed for travel time in these circumstances.
For the foregoing reasons, it must be concluded that the collective agreement does not provide for the payment claimed in the circumstances. The grievance must accordingly be dismissed.
DATED AT TORONTO, this 3rd day of October, 1972.
(signed) J. F. W. WEATHERILL